In re Complaint of Harris Design Servs. v. Columbia Gas of Ohio, Inc. (Slip Opinion) , 154 Ohio St. 3d 140 ( 2018 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In
re Complaint of Harris Design Servs. v. Columbia Gas of Ohio, Inc., Slip Opinion No. 2018-
Ohio-2395.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2018-OHIO-2395IN RE COMPLAINT OF HARRIS DESIGN SERVICES, APPELLANT, v. COLUMBIA
GAS OF OHIO, INC., INTERVENING APPELLEE; PUBLIC UTILITIES COMMISSION
OF OHIO, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as In re Complaint of Harris Design Servs. v. Columbia Gas of
Ohio, Inc., Slip Opinion No. 2018-Ohio-2395.]
Public utilities—R.C. 4905.22—Utility provided adequate notice of
disconnection—Orders of Public Utilities Commission affirmed.
(No. 2017-0436—Submitted April 10, 2018—Decided June 28, 2018.)
APPEAL from the Public Utilities Commission, No. 15-405-GA-CSS.
_________________
DEWINE, J.
{¶ 1} A public-utility company claims that it gave its customer adequate
notice that natural-gas service to the customer’s property had been disconnected by
hanging two notices on the front door of the property. The customer, who was not
occupying the property, did not discover the notices and thus did not realize that
the gas had been disconnected until the pipes froze and burst, causing damage.
SUPREME COURT OF OHIO
Whether the utility company furnished adequate notice of the service disconnection
is the main question in this appeal from orders of the Public Utilities Commission
of Ohio (“PUCO”). We conclude that the utility did provide adequate notice
through the door tags, and we affirm the orders.
BACKGROUND
{¶ 2} Columbia Gas of Ohio, Inc. (“Columbia”) supplied natural-gas
service to a property in Columbus (“the property”) that was leased to Harris Design
Services (“HDS”), an architectural-design firm. In November 2007, the firm
physically vacated the property but continued to lease and maintain it.
{¶ 3} In February 2014, Bruce Harris, the owner and president of HDS,
discovered that the building had sustained damage as a result of water pipes that
had burst due to freezing temperatures. The pipes had frozen because,
unbeknownst to HDS, Columbia had disconnected gas service to the property.
HDS eventually filed a complaint, alleging that Columbia had failed to give proper
notice of the disconnection, in violation of R.C. 4905.22, which requires utilities to
provide “necessary and adequate service.”
{¶ 4} The PUCO held a hearing on the complaint. The evidence established
that service to HDS’s building had been disconnected in September 2013 after a
cable company hit a gas line near the property. Ryder Long, a Columbia service
technician, was sent to repair the line. After making the repairs, Long reestablished
service to the meter, but he left the meter valve off and locked it so that no gas
would go into the structure until service was reestablished. He knocked on the front
door to speak with someone about restoring service to the building, but no one
answered. Long testified that he had prepared a tag to hang on the door to notify
the customer to call Columbia to reestablish service but saw that he did not need to
leave the tag, because there was already a yellow Columbia tag on the door. He
believed that the yellow tag had been placed on the door by a different technician
who had been there earlier in the day.
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January Term, 2018
{¶ 5} In November 2013, Long was called back to the property because the
gas line had been hit a second time. After making repairs, Long checked the meter
valve and saw that it was still off and locked. Once again, he knocked on the door
and no one answered. Long testified that he saw the yellow door tag still hanging
on the door from the September incident and that this time, he placed an orange tag
on top of the yellow tag.
{¶ 6} In its posthearing brief, HDS challenged the credibility of Long’s
testimony about the door tags. It noted that three individuals had testified that they
had visited the property on behalf of HDS during the relevant time period and none
of them had stated that he or she had seen a tag on the door. Janet Harris, Bruce’s
wife and the office manager for HDS, said that she had driven by the property on a
monthly basis. Bruce Harris testified that he had been in the building in December
2013 (when everything was fine) and again in February 2014 (when he discovered
the damage). And a landscaper who mowed the lawn through November 2013
testified that he did not remember seeing anything on the door.
{¶ 7} HDS further argued that even if door tags had been hung on the door,
they would not constitute sufficient notice. In addition to door tags, HDS
maintained, Columbia should have sent letters and made telephone calls to HDS.
{¶ 8} Crediting Long’s testimony, the PUCO found that Columbia had
placed the tags on the door. It further concluded that hanging a notice on a door to
a property constitutes adequate notice of disconnection after an emergency repair.
Thus, it determined that HDS had failed to establish that Columbia had acted
improperly.
{¶ 9} HDS filed a rehearing application alleging errors in the PUCO’s
decision. The PUCO’s first rehearing entry granted HDS’s rehearing application
“for the limited purpose of further consideration of the matters specified in the
application for rehearing.” Pub. Util. Comm. No. 15-405-GA-CSS, ¶ 1 (July 20,
2016). The PUCO later issued a second rehearing entry in which it substantively
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rejected the alleged errors assigned by HDS and denied HDS’s rehearing
application. HDS then filed this appeal.
DISCUSSION
{¶ 10} HDS presents six propositions of law on appeal. For ease of
discussion, we divide these propositions into three topics: (1) door tags—whether
Columbia hung them on the property’s front door and, if so, whether that
constituted adequate notice, (2) the PUCO’s actions related to its rehearing process,
and (3) evidentiary decisions made by the PUCO attorney examiner at the initial
hearing.
Door-Tag Issues
{¶ 11} HDS first challenges the PUCO’s determination that Columbia
provided adequate notice of the disconnection by hanging tags on the property’s
front door. HDS challenges the PUCO’s finding that door tags were placed on the
door, arguing that that finding was based on evidence that was uncorroborated,
lacking in detail, and not credible. It also asserts that even if door tags were hung
on the door, they did not provide adequate notice and Columbia should have done
more to alert HDS about the disconnection.
{¶ 12} As to the PUCO’s factual finding that door tags were hung on the
door, the result is dictated largely by our standard of review. We will not reverse
or modify a PUCO decision as to questions of fact when the record contains
sufficient probative evidence to show that the PUCO’s decision was not manifestly
against the weight of the evidence and was not so clearly unsupported by the record
as to show misapprehension, mistake, or willful disregard of duty. Monongahela
Power Co. v. Pub. Util. Comm., 104 Ohio St.3d 571, 2004-Ohio-6896, 820 N.E.2d
921, ¶ 29.
{¶ 13} There was no direct evidence contradicting Long’s testimony about
the door tags. HDS suggests that it is implausible that Long could remember the
details of his visits nearly two years later. But the PUCO believed Long’s
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January Term, 2018
testimony, noting that he remembered “explicit details” from his visits, namely, his
having seen the same yellow tag hanging from the door in September 2013 and
November 2013. Pub. Util. Comm. No. 15-405-GA-CSS, ¶ 13 (May 25, 2016).
HDS points to the testimony of the three witnesses who did not mention seeing the
door tags. But there was no evidence that any of these witnesses had actually
approached the front door of the building. Although Mr. Harris entered the
property, there was no evidence presented to establish that he went in through the
front door.
{¶ 14} We defer to the PUCO’s credibility determinations in its role as
finder of fact. See Lycourt-Donovan v. Columbia Gas of Ohio, Inc., 152 Ohio St.3d
73, 2017-Ohio-7566, 93 N.E.3d 902, ¶ 35. The PUCO received evidence, weighed
that evidence, and determined that two tags had been hung on the property’s front
door. Because there is sufficient probative evidence in the record to support the
PUCO’s findings, we conclude that HDS has not carried its burden to justify
reversal of those findings. Monongahela Power Co. at ¶ 29.
{¶ 15} We turn next to HDS’s contention that even if tags were placed on
the door, they did not constitute adequate notice. The PUCO determined that
Columbia complied with R.C. 4905.22, which provides that “[e]very public utility
shall furnish necessary and adequate service and facilities, and every public utility
shall furnish and provide with respect to its business such instrumentalities and
facilities, as are adequate and in all respects just and reasonable.” In doing so, the
PUCO concluded that “placing a notice on the door is adequate notice of a
disconnection after an emergency repair and that [Columbia] complied with all
standards and regulations.” Pub. Util. Comm. No. 15-405-GA-CSS, at ¶ 14.
{¶ 16} In holding that the door-tag notice was adequate, the PUCO relied
on its adoption of federal gas-pipeline safety standards in Ohio Adm.Code
4901:1-16-03(A). These standards require a utility to comply with its own internal
standards. Columbia’s internal standards required a technician to leave a tag on the
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SUPREME COURT OF OHIO
door when gas must be shut off and no one answers the door. In addition, the PUCO
cited administrative regulations that provide that attaching written notice in a
conspicuous location on the premises is required when gas service is disconnected
for reasons other than safety. Ohio Adm.Code 4901:1-13-09(B)(2) (disconnection
for tampering or unauthorized reconnection) and 4901:1-18-06(A)(2)
(disconnection for nonpayment).
{¶ 17} HDS’s merit brief almost completely ignores the PUCO’s legal
rationale for concluding that Columbia’s actions were adequate. It does not cite,
let alone analyze, the administrative-code provisions that formed the primary basis
for the PUCO’s determination. The one rule that HDS does analyze, Ohio
Adm.Code. 4901:1-13-02, was not relied on by the PUCO. Only in its reply brief
does HDS try to mount a substantive challenge to the legal rationale set forth in the
PUCO decision. The waiver doctrine, however, forecloses our consideration of
arguments first raised on reply. In re Application of Am. Transm. Sys., Inc., 125
Ohio St.3d 333, 2010-Ohio-1841, 928 N.E.2d 427, ¶ 35.
{¶ 18} The thrust of HDS’s argument in its merit brief is that the door-tag
notice was not adequate, because Columbia could have provided better notice—for
example, through a telephone call or a letter. But HDS fails to tether this
proposition to any legal requirement. And the question is not whether another type
of notice might have been more likely to provide actual notice to the customer but
whether the door-tag notice comported with the requirement that Columbia “furnish
necessary and adequate service,” R.C. 4905.22. We find nothing “unlawful or
unreasonable” in the PUCO’s determination that the door-tag notice was adequate,
and therefore, we will not disturb its holding in this regard. Constellation
NewEnergy, Inc. v. Pub. Util. Comm., 104 Ohio St.3d 530, 2004-Ohio-6767, 820
N.E.2d 885, ¶ 50.
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January Term, 2018
The Rehearing Process
{¶ 19} HDS next asserts that because the PUCO granted HDS’s rehearing
application, the agency was required by statute to grant HDS a “live, in-person,
rehearing.” HDS further contends that the failure to hold such a hearing violated
its procedural-due-process rights. HDS also argues that it was not given proper
notice of how the PUCO’s rehearing process would unfold. Before we can get to
these arguments, we must address Columbia’s and the PUCO’s contention that the
issues are not properly before this court.
{¶ 20} R.C. 4903.10 provides that an application for rehearing “shall be in
writing and shall set forth specifically the ground or grounds on which the applicant
considers the order to be unreasonable or unlawful. No party shall in any court
urge or rely on any ground for reversal, vacation, or modification not so set forth in
the application.” We have “long held that setting forth specific grounds for
rehearing is a jurisdictional prerequisite for our review.” In re Complaint of
Cameron Creek Apts. v. Columbia Gas of Ohio, Inc., 136 Ohio St.3d 333, 2013-
Ohio-3705, 995 N.E.2d 1160, ¶ 23. Thus, “when an appellant’s grounds for
rehearing fail to specifically allege in what respect the PUCO’s order was
unreasonable or unlawful, the requirements of R.C. 4903.10 have not been met.”
Discount Cellular, Inc. v. Pub. Util. Comm., 112 Ohio St.3d 360, 2007-Ohio-53,
859 N.E.2d 957, ¶ 59. We strictly enforce R.C. 4903.10’s requirements. Id.{¶ 21} In this case, HDS’s rehearing application alleged three errors. HDS
asserted that the PUCO erred in finding that HDS had not met its burden of proof,
in determining that the door tags constituted adequate notice of the disconnection,
and in making certain evidentiary findings. The PUCO issued a first rehearing
entry granting HDS’s rehearing application for the purpose of further considering
those alleged errors, but upon review of HDS’s arguments, it denied the application
in a second rehearing entry.
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SUPREME COURT OF OHIO
{¶ 22} In contrast to HDS’s rehearing application, HDS’s proposition of
law Nos. Two through Five assert (or depend on the assertion) that the PUCO was
required to hold a live, in-person hearing during the rehearing phase after
conditionally granting HDS’s rehearing application. Because these propositions
were not presented below for the PUCO’s consideration, Columbia and the PUCO
argue, we do not have jurisdiction over them.
{¶ 23} HDS rejoins that because these propositions all fault the PUCO for
actions that the PUCO took after HDS filed its rehearing application, it could not
have included these issues in its rehearing application. But once the PUCO issued
its second rehearing entry, HDS should have filed a second rehearing application
that asserted the rehearing-related arguments it now asserts for the first time.
Because it did not do so, we cannot consider these arguments. See Lycourt-
Donovan, 152 Ohio St.3d 73, 2017-Ohio-7566, 93 N.E.3d 902, at ¶ 53; Discount
Cellular, 112 Ohio St.3d 360, 2007-Ohio-53, 859 N.E.2d 957, at ¶ 66.
Exclusion of Evidence
{¶ 24} HDS asserts that the PUCO erred in upholding the attorney
examiner’s exclusion of certain documentary and testimonial evidence. First, HDS
objects to the PUCO’s affirmance of the attorney examiner’s exclusion of
documents that HDS obtained from Columbia in discovery. The attorney examiner
excluded the documents on the grounds that HDS had failed to create a foundation
for the documents with witness testimony. Because “[t]he common manner of
identifying a document is through testimony of a witness with knowledge,” St. Paul
Fire & Marine Ins. Co. v. Ohio Fast Freight, Inc., 8 Ohio App.3d 155, 158, 456
N.E.2d 551 (10th Dist.1982), citing Evid.R. 901(B)(1), we conclude that the
PUCO’s affirmance of the attorney examiner’s ruling does not reflect an abuse of
its “very broad discretion to conduct its hearings,” Greater Cleveland Welfare
Rights Org. v. Pub. Util. Comm., 2 Ohio St.3d 62, 68, 442 N.E.2d 1288 (1982).
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January Term, 2018
{¶ 25} Second, HDS challenges the PUCO’s affirmance of the attorney
examiner’s rulings on when and whether HDS could call certain witnesses. The
attorney examiner denied HDS’s attempt to call Long as upon cross-examination
at the beginning of HDS’s case-in-chief. The attorney examiner explained that
because Long’s testimony was prefiled and because HDS’s questions concerned
the prefiled testimony, HDS had to hold its questions for Long until after Columbia
called him during its defense. This is another hearing-management decision that
falls squarely within the “very broad discretion” granted to the PUCO in the
conduct of its hearings. Id. Indeed, the rules specifically empower the PUCO to
“[d]etermine the order in which the parties shall present testimony and the order in
which witnesses shall be examined,” Ohio Adm.Code 4901-1-27(B)(2).
{¶ 26} HDS’s other witness-related challenge concerns the PUCO’s
affirmance of the attorney examiner’s denial of HDS’s request to call Bruce and
Janet Harris as witnesses on rebuttal. As with Long, the testimony of the Harrises
had been prefiled. In refusing to allow the Harrises to be called again in rebuttal,
the examiner noted that the case was mainly factual in nature, that the submission
of irrelevant or cumulative evidence should be avoided, and that HDS had been
given an opportunity to develop the facts that it believed were relevant to its case.
As before, the attorney examiner’s ruling here falls within the broad authority
granted to the PUCO to conduct its hearings and control the manner of witness
testimony. Furthermore, HDS has not identified what part of Columbia’s defense
it wanted the witnesses to rebut or how it has been prejudiced.
CONCLUSION
{¶ 27} We affirm the PUCO’s orders for the reasons set forth above.
Orders affirmed.
O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, FISCHER, and
DEGENARO, JJ., concur.
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SUPREME COURT OF OHIO
Rinehart, Rishel & Cuckler, Ltd., and Grant A. Wolfe, for appellant.
Michael DeWine, Attorney General, and William L. Wright, Robert A.
Eubanks, and Thomas G. Lindgren, Assistant Attorneys General, for appellee.
Brooke E. Wanchek, Stephen B. Seiple, and Joseph M. Clark, for
intervening appellee.
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